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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC 04/2018

In the matter between:

THE STATE

and

VERNON WITBOOI                                                                                               Accused 1

GERALDO PARSONS                                                                                          Accused 2

EBEN VAN NIEKERK                                                                                           Accused 3

NASHVILLE JULIUS                                                                                             Accused 4

SENTENCE DELIVERED ON 12 NOVEMBER 2018

ALLIE, J:

1. Sentence involves the judicious exercise of the court’s discretion after having had regard to all the factors that weigh upon sentence. Both mitigating and aggravating circumstances are relevant considerations.

2. That weighing up exercise necessitates taking account of the personal circumstances of the accused, the nature and circumstances of the offence and the impact that the offence has had on the complainant, the family and society as a whole.

3. Courts are enjoined to achieve the objects of sentence which are: deterrence, rehabilitation, where applicable, and retribution.

4. In achieving those objectives, a sentencing court must take account of the impact that the commission of the offences has had on the victims and their families. As expressed by the Supreme Court of Appeal in S v Matyityi 2011 (1) SACR 40 (SCA) at para 16 the determination of an appropriate sentence involves the following:

“[16] An enlightened and just penal policy requires consideration of a broad range of sentencing options from which an appropriate option can be selected that best fits the unique circumstances of the case before court.To that should be added, it also needs to be victim-centred. Internationally the concerns of victims have been recognised and sought to be addressed through a number of declarations the most important of which is the UN Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power.The Declaration is based on the philosophy that adequate recognition should be given to victims and that they should be treated with respect in the criminal justice system. In South Africa victim empowerment is based on restorative justice. Restorative justice seeks to emphasise that a crime is more than the breaking of the law or offending against the state – it is an injury or wrong done to another person.The Service Charter for Victims of Crime in South Africa seeks to accommodate victims more effectively in the criminal justice system. As in any true participatory democracy its underlying philosophy is to give meaningful content to the rights of all citizens, particularly victims of sexual abuse, by reaffirming one of our founding democratic values namely human dignity.It enables us as well to vindicate our collective sense of humanity and humanness. The Charter seeks to give to victims the right to participate in and proffer information during the sentencing phase. The victim is thus afforded a more prominent role in the sentencing process by providing the court with a description of the physical and psychological harm suffered, as also the social and economic effect that the crime had and in future is likely to have. By giving the victim a voice the court will have an opportunity to truly recognise the wrong done to the individual victim. (See generally Karen Müller and Annette van der Merwe 'Recognising the Victim in the Sentencing Phase: The Use of Victim Impact Statements in Court'.)”

 

Personal Circumstances of the accused

 

Accused 1

5. He was 32 years old when the offences were committed.  He completed grade 6 at school. He initially worked with his uncle selling fruit and vegetables. He fell foul of the law at the young age of 12 years. From that age he was cared for by his aunt because his mother worked long hours. While at a youth centre, he completed grade 12.

6. He is the father of two boys, aged 5 and 6 yrs. He attempted to pay maintenance for his children from money that he obtained from the commission of crime.

7. He has admitted the following previous convictions:

7.1. On 6 August 1997, he was convicted of theft and sentenced to 5 months imprisonment that was suspended for 5 years;

7.2. On 16 January 1997, he was convicted of theft and the sentence was postponed;

7.3. On 13 August 1998, he was convicted of possession of drugs and the sentence was postponed;

7.4. On 6 August 1999, he was convicted of housebreaking with intent to steal and theft and was warned and discharged;

7.5. On 16 August 1999, he was convicted of three counts of theft and of housebreaking and the sentence was postponed but later he was sentenced to 6 months imprisonment;

7.6. On 10 November 1999, he was convicted of escaping or attempting to escape from custody and the sentence was postponed but he was later sentenced to 12 months imprisonment;

7.7. On 10 February 2000, he was convicted of housebreaking, theft and attempting to escape from custody and he was sent to a rehabilitation school and sentenced to 30 days imprisonment;

7.8. On 2 February 2000, he was convicted of housebreaking and theft and the sentence was postponed;

7.9. On 1 August 2000, he was convicted of housebreaking and sentenced to 18 months imprisonment;

7.10. On 12 October 2000, he was convicted of housebreaking and theft and sentenced to 12 months imprisonment with 6 months thereof suspended;

7.11. On 10 July 2000, he was convicted of housebreaking and theft and sentenced to 3 years imprisonment which was suspended but later the sentence was put into operation on 20 November 2000;

7.12. On 11 September 2003, he was convicted of two counts of theft and sentenced to 5 years imprisonment and he was warned in terms of section 286;

7.13. He was released on parole on 21 January 2010 and then parole was withdrawn on 21 December 2012

7.14. On 25 March 2011, he was convicted of possession of drugs and sentenced to 4 months imprisonment suspended for 5 years;

7.15. On 28 March 2014, he was convicted of possession of drugs and a fine of R100 was imposed;

7.16. On 24 February 2015, he was convicted of escaping from custody and sentenced to 6 months imprisonment;

7.17. On 15 June 2016, he was convicted of contempt of court for failing to attend court and a fine of R100 was imposed.

 

Accused 2

8. Accused 2 is 28 years old. He has two younger siblings. His father was a bus driver but he passed away in 2013. He finished grade 9 at school. He became exposed to gangsterism at school. He was compelled to join the gang for his own safety. He has 2 children by Ms Johnson and one by another woman. They are aged 6, 8 and 12 years.

9. He earned R700 per week as a casual worker on a farm but his main source of income was from crime. He paid maintenance for his children from the proceeds of crime. He was released on parole in April 2015.

10. His advocate argued that he co-operated with the court in that he admitted his guilt when he testified even though he pleaded not guilty. It was also submitted that his testimony strengthened the state’s case. A further submission is that he took responsibility for his actions and showed remorse by admitting his guilt during his testimony.

11. It was submitted on his behalf that there are no substantial and compelling circumstances present but he asked that the sentences imposed on him be ordered to run concurrently.

12. He admitted his previous convictions which are as follows:

12.1. On 18 November 2009, he was convicted of theft and sentenced to 5 years imprisonment suspended for 3 years and he was declared unfit to possess a firearm;

12.2. On 6 February 2013, he was convicted of housebreaking and theft and sentenced to 2 years imprisonment;

12.3. On 8 July 2014, he was convicted of possession of stolen goods and sentenced to 9 months imprisonment;

 

Accused 3

13. He is 28 years old. He has 5 siblings and he is the eldest. He lives with his parents. He completed grade 5 at school. He is not in a meaningful relationship with a woman and has no children.

14. He is currently serving a sentence for robbery with aggravating circumstances for which he was convicted on 28 August 2013.The circumstances in which that robbery was committed is that he and his co accused threatened the complainant with a knife and robbed him of R25 00,00 cash.

15. The probation officer’s report in that case states that the accused‘s  parents abused alcohol and that he lived in poverty and only worked for 5 months. It also states that he abused drugs since the age of 13 and he commits crime to feed his drug habit.

16. He worked for three months at a construction company, prior to the imposition of the sentence that he is currently serving.

17. On his behalf it was submitted that there are no substantial and compelling circumstances present. It was submitted that the attempted murder and murder were not premeditated. It was further submitted that the heinous nature of the offences shouldn’t displace the consideration of other mitigating factors.

 

Accused 4

18. He is 29 years old. He was cared for by both his parents and was taught to be respectful. He was well nurtured and received everything that a child required.

19. Although his father consumed alcohol, there were no family problems.

20. His upbringing was a pleasant and happy one.

21. He was quiet with a stuttering problem while growing up.

22. He has one younger sister. He completed grade 11 at school.

23. His life went downward when he consumed drugs and associated with the wrong company.

24. He has a 5 year old son and his mother helps maintain the child who lives with the child’s mother.

25. On his behalf, the following were alleged to constitute substantial and compelling circumstances:

25.1. His personal circumstances;

25.2. The fact that he confessed to robbing Marsh;

25.3. He didn’t wield a dangerous weapon during the robbery;

25.4. He didn’t inflict grievious bodily harm nor threaten to do so to Marsh and the deceased;

25.5. He is an awaiting trial prisoner for one year and 5 months;

25.6. He is a first offender for robbery with aggravating circumstances;

25.7. His involvement in the offences was minimal;

25.8. He walked away from the group and that disassociation should count in his favour;

25.9. He is allegedly a suitable candidate for rehabilitation.

26. His previous convictions are as follows:

26.1. On 14 September 2006 he was convicted of housebreaking and theft and sentenced 12 months imprisonment which was suspended for three years;

26.2. On 8 November 2007 he was convicted of theft and possession of drugs and sentenced to 4 months imprisonment;

26.3. On 11 August 2011 he was convicted of theft and sentenced to 6 months imprisonment which was suspended for 5 years as well as 6 months correctional supervision and 24 hour community service;

26.4. On 28 August 2013 he was convicted of attempted housebreaking and was sentenced to 24 months imprisonment which was suspended for five years;

26.5. On 20 May 2015 he was convicted of two counts of theft and sentenced to 3 months imprisonment;

26.6. On 23 June 2015 he was convicted of theft and sentenced to 12 months imprisonment which was suspended for 3 years;

26.7. On 5 September 2016 he was convicted of possession of drugs and was warned and discharged.

 

The state’s evidence in aggravation

Mrs Marilyn Marsh

27. Mrs Marilyn Marsh, Cheslin Claud Marsh’s mother testified that she was shocked when she received a call from the police on 27 May 2017 to inform her that her son, Cheslin was at a hospital in Kraaifontein.

28. When she saw her son, he was badly injured and in pain.

29. Through his pain, he was concerned about Hannah and asked her to tell the police to look for her because the accused would hurt her.

30. Her son had to spend 2 weeks in Tygerberg Hospital and she was exhausted because she had to visit him there and attend to his needs. As a result, her work suffered.

31. She is a single mother of three children and she had to be strong for all of them.

32. There were times when she was overwhelmed by the trauma of her son’s ordeal and injuries but she is grateful for the support that she received from family, friends and the community.

33. She is grateful to God that her son survived especially after the doctor explained how serious his injuries were.

34. Cheslin needs a hearing aid and although she couldn’t afford it, she hoped to buy him one so that he could go back to studying.

35. He had a student debt with the university last year but he was fortunate in that the university wrote off the debt due to the intervention of Professor Cornelius.

36. She met Hannah briefly and found her to be friendly. She feels the pain that Hannah’s family has to endure.

37. She asked rhetorically what type of people would do that to her son and Hannah.

38. She asked the accused why they attacked her son when he caused them no harm.

 

Professor Eleanor Cornelius

39. She is the maternal aunt of the deceased.  She described how difficult it was to explain to her three daughters and her 90 year old mother what happened to Hannah.

40. The witness saw happiness and peace leave her mother after she broke the news to her.

41. Within 10 months of the death of Hannah, the deceased’s grandmother and mother passed away.

42. As a result of the senseless offences, her children will never lead a normal life. She described how the family had become beset with paranoia.

43. Hannah’s absence is felt at every family event and milestone in their lives.

44. She said that the accused acted like monsters. They had every opportunity to stand back and to stop their offensive behaviour but they persisted in taking cold-blooded violent action.

45. She described the accused as no real men who took away the freedom of innocent and defenceless people and who took from the deceased what which she would not have given them willingly and then proceeded to kill her violently to conceal their heinous deeds.

 

Willem Cornelius

46. The father of the deceased testified. He described what a close bond he, his late wife, the deceased and her autistic brother had.

47. He described the deceased as a person who cared for disadvantaged people and who had a passion for helping others.

48. He described how proud he and his late wife were of Hannah as she was: “a child for the new South Africa, a child without the baggage of our generation, with little interest in money or material things, with no prejudice regarding race, religion or social standing. A remarkable child on the cusp of growing into a remarkable young woman.”

49. He described the devastating effect of her death on his family. His son doesn’t understand the concept of death and still asks when Hannah is coming home.

50. He described his life as being devoid of joy, expectation for the future, goals to strive towards and as just having an obligation to his son.

51. He described how his wife had given up her law practice and devoted all her effort to a foundation started in the name of Hannah. He also explained how his wife had become a shadow of her old self after the death of Hannah.

52. He expressed guilt about the publicity this trial received when most vulnerable members of society, women, children and the elderly are assaulted, murdered and abused daily without those crimes receiving the same attention.

53. He said that he and his son are not a family but are survivors who live in the ruins of what once was.

 

The state’s submissions

54. Mr Badenhorst made the following submissions:

54.1. Accused 3 is not a first offender for robbery with aggravating circumstances and in terms of Act 105 of 1997, the prescribed minimum sentence for him is 20 years imprisonment.

54.2. The remaining accused are first offenders for robbery with aggravating circumstances and the applicable minimum sentence is 15 years imprisonment.

54.3. Kidnapping and attempted murder doesn’t carry a minimum sentence but direct imprisonment is warranted.

54.4. Based on the decision in Naude & Another v The State 2 All SA 517 (SCA) that life imprisonment be imposed for the attempted murder count.

54.5. For the rape count, the state pointed out that it was multiple rapes and therefore life imprisonment should be imposed.

54.6. For the murder count, the state asked for the imposition of life imprisonment.

54.7. The state disputed that accused 2 showed true remorse because accused 2 didn’t assist the police in finding Kaffirtjie and he failed to avail himself of the opportunity to plead guilty.

54.8. The accused demonstrated vengefulness because Marsh was told before he was beaten in the bush that he is being punished for having given an incorrect bank pin number. Marsh and the deceased were threatened with death if the deceased didn’t give the accused the keys to her car.

54.9. Cheslin suffered irreparable harm and there is no reparation possible for the murder of the deceased.

54.10. The gang association was not only admitted by accused 2 but it is evident in his tattoos. Those tattoos also reflect his condescending and violent attitude towards women and the police.

54.11. The drugs used by the accused had no impact on their cognitive functioning that morning as they indeed put Marsh and later the deceased in the boot as they had planned. Accused 1 can be seen at the Caltex garage looking down when he is caught on the camera. This shows that he tried to avoid making his face visible to the camera. The accused took the deceased to Reaper’s Paintball club because they knew it would be deserted. The accused wore condoms so that their DNA is not linked to the deceased to avoid being caught. Accused 1 changed his pants to avoid being found with the deceased’s DNA on his pants. Accused 3 burned his clothes to avoid being caught with the deceased’s blood on his clothes. The conduct described above are the actions of accused persons whose judgment were not impaired by the use of drugs.

54.12. They didn’t simply use the money for drugs because accused 2 planned to sell the car and he gave money for his daughter so he clearly intended using the money for other purposes as well.

54.13. Accused 1 and accused 2 were the main leaders of the group that morning.

 

Evaluation of the personal circumstances of the accused

Accused 1

55. The young age at which accused 1 commenced his life of crime points to him being a person who refused to abide by rules and the law from a young age and that is the most likely reason why he was placed in the care of his aunt and had to work with his uncle. His mother could simply not exercise authority over him sufficiently even at the age of 12.

56. He was able to complete grade 12 and clearly has the cognitive ability to understand the nature and consequence of his actions and the far-reaching implications that it has on his victims. His educational achievement is not a mitigating factor but an aggravating factor because he ought to know better.

57. His advocate argued that drugs played a role in the commission of the offences and that, together with his personal circumstances constitute mitigating circumstances. He could however not argue that substantial and compelling circumstances exist to justify a deviation from the prescribed minimum sentence.

58. There is no evidence of accused 1 having used drugs at the time when he hatched the plan to rob and when he in fact commenced the robbery and kidnapping.

59. The consequential and goal-directed manner in which all the accused conducted themselves, amply demonstrate that the use of drugs didn’t impair their ability to discern between right and wrong.

60. I am unable to appreciate the argument advanced by the defence that the use of drugs should be considered to be a mitigating factor in this case, given the conduct of the accused and the provisions of the Criminal law Amendment Act concerning intoxicating substances. Section 2 of the Criminal Law Amendment Act 1 of 1998, provides:

"Whenever it is proved that the faculties of a person convicted of any offence were impaired by the consumption or the use of a substance when he committed that offence, the Court may, in determining an appropriate sentence to be imposed upon him in respect of that offence, regard as an aggravating circumstance the fact that the faculties were thus impaired.”

61. Drug use is not a mitigating factor in this case.

62. In the 16 criminal convictions that accused 1 has, he was granted an opportunity to reform himself. The type of offences, the frequency of their commission and the various sentence options extended to accused 1 in those 16 instances did nothing to deter him from a life of committing criminal offences with impunity. While none of the previous convictions are for the same offences for which he is convicted in this case, the element of dishonesty looms large in his previous convictions of housebreaking and theft.

63. Accused 1 has three previous convictions of escaping from custody which demonstrates his flagrant disregard for law enforcement agencies and his refusal to accept the consequence of punishment for offences he committed.

 

Accused 2

64. The submissions made on behalf of accused 2 are conflictual in that he is alleged to have left school and home to avoid becoming involved with gangs yet he was also allegedly exposed to gangs and had to join them while at school.

65. Clearly accused 2 chose to belong to a gang and to have that affiliation exhibited all over his body in the form of tattoos.

66. Accused 2’s previous convictions are also not convictions of offences for which he is convicted in this case but they do involve elements of dishonesty.

67. The various sentence options afforded to accused 2 in his 3 previous convictions didn’t deter him from continuing with a life of crime.

68. Accused 2 was one of two prime movers behind the commission of the offence.

69. He displayed a callous disregard for the liberty, and life of his victims. He treated them as mere pawns at his disposal to do with as he pleased in his quest to violently take what didn’t belong to him and to dump Marsh and later the deceased in the boot as though they were not human.

70. He showed no appreciation for the pain and suffering that the deceased endured during the rape and chose to cast it as something that occurred with her consent.

 

Accused 3

71. Accused 3 has a relevant previous conviction of robbery with aggravating circumstances.

72. A lack of education doesn’t in itself constitute a mitigating factor. It has to be considered in conjunction with nature of the accused’s misconduct.

73. He conducted himself in a cunning manner by ensuring that no DNA of his were found at Reaper’s Paintball Club and by burning his clothes containing the blood of the deceased after he inflicted deep and fatal stab wounds to her neck.

74. There are no ordinary mitigating factors present in his personal circumstances that would outweigh the aggravating factors.

 

Accused 4

75. He enjoyed a stable upbringing and a loving family environment which makes the commission of the offences inexplicable.

76. He must be punished for the offences that he committed and not rewarded for the offences that he didn’t commit. His disassociation was acknowledged when he was not charged on counts 5 to 10. That disassociation does not however translate into mitigation for the offences of which he was convicted.

77. He played an active role in searching for the keys and thereby facilitated his co-accused’s quest to drive off with the car containing Marsh and the deceased.

78. He played an instrumental role in ensuring that the objects of the group to rob and kidnap were carried out.

79. I am in agreement with the state’s submission that the use of drugs didn’t negatively influence the accused’s cognitive abilities and it can’t be considered to be a mitigating factor.

80. He has 7 previous convictions that involve an element of dishonesty. He was given various sentence options but none appear to have deterred him from continuing to commit crime. He is accordingly not a suitable candidate for rehabilitation.

 

Evaluation of Nature and Circumstances of Offences

81. The way in which Marsh’s freedom of movement was curtailed, namely by being put in the boot, was later also the way in which the deceased’s movement was restricted, by putting her in the boot after she was raped.

82. The way in which Marsh was abandoned in a dark bush is also the way in which the deceased was left in an isolated area.

83. The way in which Marsh was assaulted with stones on his head and facial area is also the way the deceased was murdered, namely by being beaten with a rock or boulder on the head.

84. The way in which Miemie Oktober was forced into the car and forced to provide her pin number, is also the way in which force was brought to bear on Cheslin and Hannah.

85. There can be no doubt that the accused were consistent and lucid in their modus operandi.

86. The kidnapping of the deceased and Marsh endured for a sufficiently long period to cause Marsh extreme claustrophobia, fear, anxiety, helplessness and trauma.

87. According to Marsh, the deceased voice was soft and filled with fear. It must have been a harrowing experience for the deceased to continue to be kept captive, threatened and physically violated by accused 1, 2, and 3 after Marsh had been abandoned.

88. According to accused 1 and accused 2, they could see the fear in the eyes of the deceased.

89. What is however appalling is the fact that the deceased was forced to continue to be held captive by accused 1, 2, and 3 after Marsh had been beaten and abandoned.

90. The only reason for doing so was to take full advantage of the fact that the deceased was a woman and to subject her to gang rape.

91. The act of rape was addressed by the State as the accused seeking to achieve sexual pleasure for themselves. It is a misconception to describe the objective of rape in that manner.

92. This court has to point out that rape is an act of exercising power over a victim in a violent, brutal and humiliating manner.

93. The rapes of the deceased in casu, were designed to bring the deceased to complete subjugation by wielding power over her and humiliating her in the process. It is a violation of her privacy, dignity and humanity.

94. In S v Chapman [1997] ZASCA 45; 1997 (2) SACR 3 (SCA) at 5b the court described rape as follows:

‘Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation.’

95. In Mudau v The State [2012] ZASCA 56 at para 14 the court said the following about the scourge of rape, albeit in the context of a rape by a family member:

“[14] Our country is plainly facing a crisis of epidemic proportions in respect of rape, particularly of young children. The rape statistics induce a sense of shock and disbelief. The concomitant violence in many rape incidents engenders resentment, anger and outrage. Government has introduced various programmes to stem the tide, but the sexual abuse of particularly women and children continue unabated. In S v RO, I referred to this extremely worrying social malaise, to the latest statistics at that time in respect of the sexual abuse of children and also to the disturbingly increasing phenomenon of sexual abuse within a family context. If anything, the picture looks even gloomier now, three years down the line. The public is rightly outraged by this rampant scourge. There is consequently increasing pressure on our courts to impose harsher sentences primarily, as far as the public is concerned, to exact retribution and to deter further criminal conduct. It is trite that retribution is but one of the objectives of sentencing. It is also trite that in certain cases retribution will play a more prominent role than the other sentencing objectives. But one cannot only sentence to satisfy public demand for revenge – the other sentencing objectives, including rehabilitation can never be discarded altogether, in order to attain a balanced, effective sentence. The much quoted Zinn dictum remains the leading authority on the topic. Rumpff JA’s well-known reference to the triad of factors warranting consideration in sentencing, namely the offender, the crime and the interests of society, epitomises the very essence of a balanced, effective sentence which meets all the sentencing objectives.”

96. While there are other violent acts that also brought the deceased and Marsh to submission, it is the relevant accused’s decision to prey upon the vulnerability of the deceased as a woman that makes the rapes the crudest and cruellest form of violence.

97. The medical evidence is unequivocal on the fact that the rapes caused the deceased extreme pain and anguish.

98. Accused 2 described how he put the deceased into the boot after she had been gang raped and how he later forcibly pulled her out of the boot at Groenhof Farm and how she resisted. That force and resistance must have caused the deceased extreme anguish and pain.

99. In addition, accused 3, then stabbed her twice deeply in the neck causing huge loss of blood and undoubtedly pain and weakness.

100. The way in which the deceased was left, points to sexual or physical violation and/or exposure of her private parts at Groenhof farm because she had no underwear, her sweater was pulled up underneath her jacket while it was inside out and her pants was pulled down.

101. Accused 1, 2 and 3 deemed it necessary to inflict death upon her while she lay face down on the ground in that condition.

102. The way in which the most fatal blunt force blows were inflicted, namely by hurling a large stone or rock against her head repeatedly is not only violent but also vengeful and filled with vicious intent to cause certain death instantly.

103. Ms Qwina is a young lady of limited financial means who was robbed after being followed by accused 3 and his co-perpetrator while she was walking in the road at 8h30 am. She was frightened and tearful when Ms Sheldon came to her assistance. All her stolen possessions were not recovered. She was traumatised to the point of being fearful of testifying in court.

104. Mrs Oktober is also a woman of little financial means who, like the accused, didn’t have her own motor vehicle and had to use taxis as a means of transport. She was kidnapped and robbed while walking from a shopping centre at approximately 13h00 on a Saturday afternoon.

105. Accused 1, 2 and 3 callously forced Mrs Oktober into the car and threatened her with what she believed to be a firearm so that they could withdraw money from her bank accounts.

106. Mrs Oktober testified about her fear and trauma at being violently forced into a car with 4 strange men. She had to endure the fear and anxiety of them robbing her of her two cell phones, wedding rings, bank card and money and the uncertainty of not knowing if further harm would come to her. A considerable amount of money was eventually withdrawn from her bank account by the accused, namely R3900, 00.

107. In S v Vilakazi 2009 (1) SACR 552 (SCA). Nugent JA said the following at [58]:

‘In cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of 'flimsy' grounds that Malgas said should be avoided. But they are nonetheless relevant in another respect. A material consideration is whether the accused can be expected to offend again. While that can never be confidently predicted his or her circumstances might assist in making at least some assessment.’

108. In my view, none of the accused, including accused 4 have proved any mitigating factors that can be said to constitute substantial and compelling reasons to justify a deviation from the prescribed minimum sentence.

 

Aggravating Factors

109. The aggravating features of the offences in casu are the following:

109.1. Cheslin Marsh has been scarred for life due to the physical injuries which include permanent disability and he was unable to continue his academic education at university because he couldn’t focus as a result of the trauma and stress;

109.2. Hannah Cornelius’ family and friends continue to suffer from the consequences of her brutal rape and murder. Cheslin Marsh, Prof Eleanor Cornelius and Willem Cornelius described the turmoil in their lives caused by the commission of the offences on Hannah. The Cornelius family has been torn asunder as a result of the brutality perpetrated on the deceased;

109.3. Mrs Oktober is so traumatised that more than a year after she was kidnapped and robbed at gunpoint, she is still tearful and fearful;

109.4. Ms Qwina too, was terrified of the accused to the extent where she didn’t want to come to court to testify initially and it took some deft police work for her to eventually do so. She remained frightened and nervous of facing the accused and became tearful. She is a young lady who most likely has no choice but to continue walking to various destinations. She can’t do so without fear after she was robbed by accused 1, 2 and 3.

109.5. What happened to Marsh, Cornelius and Qwina when they were attacked by the accused, is what every parent dreads. The commission of the offences had a chillingly impact on society as a whole and in particular on young students and their families.

109.6. Concerning the defence’s submission that the accused showed remorse, the following extract from S v Matyityi supra at para 13 is apposite:

"…There is, moreover, a chasm between regret and remorse.  Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse.  Remorse is a gnawing pain of conscience for the plight of another, thus genuine contrition can only come from the appreciation and the acknowledgement of the extent of one’s error.  Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught, is a factual question.  It is to the surrounding actions of the accused, rather than what he says in court that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere, and the accused must take the Court fully into his or her confidence.  Until and unless that happens, the genuineness of the contrition alleged to exist, cannot be determined.  After all, before a Court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed; what has since provoked his or her change of heart, and whether he or she does, indeed, have a true appreciation of the consequences of those actions...”

109.7. Accused 2, when testifying about the rape, expressed no true remorse but cried because he felt he betrayed his girlfriend.

109.8. Accused 1 cried during the confession recorded by the police when he described how he was apprehended by the police, clearly feeling sorry for himself but he expressed no regret when he described the commission of the offences.

109.9. Accused 1 and 2 therefore cried because of the predicament they now find themselves in.

109.10. In answer to a question by the state concerning why he deemed it necessary to rob when he had employment, accused 2 said that is the way life works. That is a reflection of his mind set and his view of the role he played. It is a sub-humane attitude borne out of depravity. Consequently, his prospects of rehabilitation are not favourable.

109.11. Accused 3’s attempted apology expressed in his letter to the parents of Hannah is negated by his refusal to play open cards with the court and to directly acknowledge his role in the commission of the offences as well as by the palpably false allegation in the letter that he feared his co-accused at the time when the offences were perpetrated and that he considered Hannah to be a friend.

109.12. I am fortified in my conclusion by the extract from the case of Matyityi quoted above that none of the accused demonstrated true remorse.

109.13. The accused didn’t seriously challenge the state’s evidence and offered no alternative version to that of the state on material aspects of the case. That begs the question of why they persisted with pleas of not guilty when they had access to the further particulars of the state’s case.

109.14. None of the accused took the court into their confidence by fully describing, without exculpatory reservations, how they conducted themselves during the commission of the offences and therefore, none of the accused showed true and genuine remorse. They chose to plead not guilty and according to accused 2 he did so because he wanted to see what proof could be produced against him. I recognise that the accused have the right to silence and the right to plead not guilty but the reason accused 2 offered for doing so is callous and points to a lack of remorse.

110. I am mindful of the requirement that the sentences of each accused must be individualised. In so doing, I have considered the long list of previous convictions of accused 1 and the many opportunities for reform that accompanied the sentences previously imposed on him as well as accused 1’s joint leadership role and his role in beating Marsh to within an inch of his life and in beating the Hannah to death. I have also considered the primary leadership role of accused 2 together with his previous convictions and his opportunity to reform himself as well as the fact that he ultimately confessed albeit at a very late stage while his evidence remained peppered with misconceptions and twists on truth. I have considered the role played by accused 3 and his relevant previous conviction. I have also taken account of accused 4’s favourable personal circumstances, his previous convictions and the role he played in the commission of counts 1 to 4.

111. The state correctly submitted that the accused can’t be allowed to patrol the streets in search of opportunities to perpetrate violent and brutal crimes, as they did in this case. Indeed, society deserves protection from them.

IT IS ORDERED THAT:

1. On count 1, the robbery with aggravating circumstances of Cheslin Claud Marsh: Accused 1, is sentenced to 15 years direct imprisonment;

2. On count 2, the robbery with aggravating circumstances of Hannah Cornelius: Accused 1 is sentenced to 15 years direct imprisonment;

3. On count 3, the kidnapping of Cheslin Claud Marsh: Accused 1 is sentenced to 10 years direct imprisonment;

4. On count 4, the kidnapping of Hannah Cornelius: Accused 1, is sentenced to 10 years direct imprisonment;

5. On count 5, the attempted murder of Cheslin Claud Marsh: Accused 1, is sentenced to 25 years direct imprisonment;

6. On count 6, the rape of Hannah Cornelius, Accused 1, is sentenced to life imprisonment;

7. On count 7, the murder of Hannah Cornelius, Accused 1, is sentenced to life imprisonment;

8. On count 8, the robbery with aggravated circumstances of Ncumisa Qwina, Accused 1, is sentenced to 15 years direct imprisonment;

9. On count 9, the robbery with aggravated circumstances of Miemie Oktober, Accused 1, is sentenced to 15 years direct imprisonment;

10. On count 10, the kidnapping of Miemie Oktober, Accused 1, is sentenced to 10 years direct imprisonment.

11. On count 1, the robbery with aggravating circumstances of Cheslin Claud Marsh: Accused 2, is sentenced to 15 years direct imprisonment;

12. On count 2, the robbery with aggravating circumstances of Hannah Cornelius: Accused 2 is sentenced to 15 years direct imprisonment;

13. On count 3, the kidnapping of Cheslin Claud Marsh: Accused 2 is sentenced to 10 years direct imprisonment;

14. On count 4, the kidnapping of Hannah Cornelius: Accused 2, is sentenced to 10 years direct imprisonment;

15. On count 5, the attempted murder of Cheslin Claud Marsh: Accused 2, is sentenced to 25 years direct imprisonment;

16. On count 6, the rape of Hannah Cornelius, Accused 2, is sentenced to life imprisonment;

17. On count 7, the murder of Hannah Cornelius, Accused 2, is sentenced to life imprisonment;

18. On count 8, the robbery with aggravated circumstances of Ncumisa Qwina, Accused 2, is sentenced to 15 years direct imprisonment;

19. On count 9, the robbery with aggravated circumstances of Miemie Oktober, Accused 2, is sentenced to 15 years direct imprisonment;

20. On count 10, the kidnapping of Miemie Oktober, Accused 2, is sentenced to 10 years direct imprisonment.

21. On count 1, the robbery with aggravating circumstances of Cheslin Claud Marsh: Accused 3, is sentenced to 20 years direct imprisonment;

22. On count 2, the robbery with aggravating circumstances of Hannah Cornelius: Accused 3 is sentenced to 20 years direct imprisonment;

23. On count 3, the kidnapping of Cheslin Claud Marsh: Accused 3 is sentenced to 10 years direct imprisonment;

24. On count 4, the kidnapping of Hannah Cornelius: Accused 3, is sentenced to 10 years direct imprisonment;

25. On count 5, the attempted murder of Cheslin Claud Marsh: Accused 3, is sentenced to 20 years direct imprisonment;

26. On count 6, the rape of Hannah Cornelius, Accused 3, is sentenced to life imprisonment;

27. On count 7, the murder of Hannah Cornelius, Accused 3, is sentenced to life imprisonment;

28. On count 8, the robbery with aggravated circumstances of Ncumisa Qwina, Accused 3, is sentenced to 20 years direct imprisonment;

29. On count 9, the robbery with aggravated circumstances of Miemie Oktober, Accused 3, is sentenced to 20 years direct imprisonment;

30. On count 10, the kidnapping of Miemie Oktober, Accused 3, is sentenced to 8 years direct imprisonment.

31. On count 1, the robbery with aggravating circumstances of Cheslin Claud Marsh: Accused 4, is sentenced to 15 years direct imprisonment;

32. On count 2, the robbery with aggravating circumstances of Hannah Cornelius: Accused 4 is sentenced to 15 years direct imprisonment, which will run concurrently with the sentence imposed for count 1;

33. On count 3, the kidnapping of Cheslin Claud Marsh: Accused 4 is sentenced to 7 years direct imprisonment;

34. On count 4, the kidnapping of Hannah Cornelius: Accused 3, is sentenced to 7 years direct imprisonment, which will run concurrently with the sentence imposed for count 3;

 

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JUDGE R. ALLIE

 

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